Federal Register, Volume 83 Issue 34 (Tuesday, February 20, 2018)

[Federal Register Volume 83, Number 34 (Tuesday, February 20, 2018)]
[Notices]
[Pages 7218-7220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-03303]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Robert C. Vidaver, M.D.; Decision and Order

    On July 18, 2017, the Acting Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause to Robert C. Vidaver, M.D. 
(hereinafter, Respondent), of Henniker, New Hampshire. GX 2. The Show 
Cause Order proposed the revocation of Respondent's Certificate of 
Registration on the ground that Respondent is ``currently without 
authority to handle controlled substances in the State of New 
Hampshire,'' the State in which he is registered. GX 2, at 2 (citing 21 
U.S.C. 824(a)(3)).
    As to the Agency's jurisdiction, the Show Cause Order alleged that 
Respondent holds DEA Certificate of Registration No. FV0660565, which 
authorizes him to dispense controlled substances in schedules II 
through V as a practitioner, at the registered address of 304 Highland 
Drive, Henniker, New Hampshire 03242. GX 2, at 1. See also GX 1 
(Certification of Registration History). The Show Cause Order alleged 
that this registration expires on May 31, 2019. GX 2, at 1. See also GX 
1, at 1.
    As the substantive ground for the proceeding, the Show Cause Order 
alleged that Respondent is ``without

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authority to handle controlled substances in the State of New 
Hampshire, the state in which . . . [he is] registered with DEA.'' GX 
2, at 1. It further alleged that, ``[o]n July 2, 2015, the New 
Hampshire Board of Medicine issued an Order on Practice Restrictions 
prohibiting . . . [Respondent] from prescribing or administering 
controlled substances . . . [and t]hus, . . . [Respondent is] currently 
without authority to handle controlled substances in the State of New 
Hampshire.'' GX 2, at 1. See also GX 3 (New Hampshire Board of Medicine 
Order on Practice Restrictions (hereinafter, Practice Restrictions 
Order)) and GX 6 (New Hampshire Online Licensing information concerning 
Respondent) (``7/2/15--Order on Practice Restrictions. License is 
active pending further Board Action.''). The Show Cause Order asserted 
that ``DEA must revoke . . . [his] DEA registration based on . . . 
[his] lack of authority to handle controlled substances in the State of 
New Hampshire.'' GX 2, at 1-2 (citing 21 U.S.C. 824(a)(3) and 21 CFR 
1301.37(b)).
    The Show Cause Order notified Respondent of his right to request a 
hearing on the allegations or to submit a written statement while 
waiving his right to a hearing, the procedures for electing each 
option, and the consequences for failing to elect either option. GX 2, 
at 2 (citing 21 CFR 1301.43). The Show Cause Order also notified 
Respondent of the opportunity to submit a corrective action plan. GX 2, 
at 2 (citing 21 U.S.C. 824(c)(2)(C)).
    On July 27, 2017, a DEA Diversion Investigator personally served 
Respondent with the Show Cause Order. GX 4, at 1 (Declaration of 
Service of Order to Show Cause dated October 3, 2017).
    By letter dated August 17, 2017 addressed to the Office of the 
[DEA] Administrative Law Judges and copied to Respondent, James P. 
O'Rourke, Jr., Esq., advised that ``upon advice of counsel, Dr. Vidaver 
is exercising his right against self-incrimination pursuant to the New 
Hampshire and United States Constitution . . . [and a]s such, Dr. 
Vidaver will not be appearing at the September 12, 2017 hearing nor 
offering a statement regarding the instant Order to Show Cause.'' GX 5, 
at 1 (Letter of James P. O'Rourke, Jr., Esq.) (emphasis in original).
    On October 12, 2017, the Government submitted a Request for Final 
Agency Action including an evidentiary record to support the Show Cause 
Order's allegation (hereinafter, RFAA).
    I find that the Government's service of the Show Cause Order on 
Respondent was legally sufficient.
    I find that the letter from Mr. O'Rourke stated that Respondent was 
exercising his Federal and State Constitutional rights against self-
incrimination and, therefore, will not appear at a hearing or file a 
written statement. Based on the letter from Respondent's counsel, I 
find that Respondent has waived his right to request a hearing, to 
submit a written statement, and to submit a corrective action plan.
    I issue this Decision and Order based on the record submitted by 
the Government. 21 CFR 1301.43(e).

Findings of Fact

Respondent's DEA Registration

    Respondent currently holds DEA practitioner registration FV0660565 
authorizing him to dispense controlled substances in schedules II 
through V at the address of 304 Highland Drive, Henniker, New Hampshire 
03242. GX 1, at 1; GX 2, at 1. This registration expires on May 31, 
2019. Id.

The Status of Respondent's Authority To Dispense Controlled Substances 
in New Hampshire

    On July 2, 2015, the Administrator and Authorized Representative of 
the New Hampshire Board of Medicine signed a Practice Restrictions 
Order granting Respondent's request to continue the Adjudicatory/
Disciplinary Proceeding hearing concerning him ``until the resolution 
of . . . [Respondent's] criminal case.'' GX 3, at 2. The terms of the 
Practice Restrictions Order continuance included that Respondent ``will 
refrain from prescribing or administering any controlled substances.'' 
Id. The Government represented in the RFAA that ``Respondent's New 
Hampshire medical license prohibits him from prescribing or 
administering controlled substances'' and ``Registrant is without state 
authority to handle controlled substances in New Hampshire, the state 
where he is registered with DEA.'' RFAA, at 3.
    Accordingly, I find that Respondent currently is without authority 
to prescribe or administer any controlled substance in New Hampshire, 
the State in which he is registered with DEA.

Discussion

    Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized 
to suspend or revoke a registration issued under section 823 of the 
Controlled Substances Act (hereinafter, CSA), ``upon a finding that the 
registrant . . . has had his State License or registration suspended 
[or] revoked by competent State authority and is no longer authorized 
by State law to engage in the . . . dispensing of controlled 
substances.'' With respect to a practitioner, the DEA has also long 
held that the possession of authority to dispense controlled substances 
under the laws of the State in which a practitioner engages in 
professional practice is a fundamental condition for obtaining and 
maintaining a practitioner's registration. See, e.g., James L. Hooper, 
M.D., 76 FR 71,371, 71,371-72 (2011), pet. for rev. denied, 481 Fed. 
Appx. 826 (4th Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27,616, 
27,617 (1978).
    This rule derives from the text of two provisions of the CSA. 
First, Congress defined the term ``practitioner' [to] mean[ ] a 
physician . . . or other person licensed, registered, or otherwise 
permitted, by . . . the jurisdiction in which he practices . . . to 
distribute, dispense, . . . [or] administer . . . a controlled 
substance in the course of professional practice.'' 21 U.S.C. 802(21). 
Second, in setting the requirements for obtaining a practitioner's 
registration, Congress directed that ``[t]he Attorney General shall 
register practitioners . . . if the applicant is authorized to dispense 
. . . controlled substances under the laws of the State in which he 
practices.'' 21 U.S.C. 823(f). Because Congress has clearly mandated 
that a practitioner possess State authority in order to be deemed a 
practitioner under the CSA, the DEA has held repeatedly that revocation 
of a practitioner's registration is the appropriate sanction whenever 
he is no longer authorized to dispense controlled substances under the 
laws of the State in which he practices. See, e.g., Hooper, 76 FR at 
71,371-72; Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131 (2006); 
Dominick A. Ricci, M.D., 58 FR 51,104, 51,105 (1993); Bobby Watts, 53 
FR 11,919, 11,920 (1988); Blanton, 43 FR at 27,617.
    In this case, the New Hampshire Board of Medicine ordered practice 
restrictions on Respondent when it granted Respondent's request for a 
continuance of the licensee disciplinary proceedings against him. The 
New Hampshire Board of Medicine Practice Restrictions Order granted the 
continuance Respondent requested ``to the extent'' that Respondent 
``refrain[s] from prescribing or administering any controlled 
substances.'' GX 3, at 2.
    Consequently, Respondent is not currently authorized to handle 
controlled substances in the State of

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New Hampshire, the State in which he is registered with the Agency and, 
therefore, he is not entitled to maintain his DEA registration. Hooper, 
76 FR at 71,371-72; Blanton, 43 FR at 27,617. Accordingly, I will order 
that Respondent's registration be revoked and that any pending 
application for the renewal or modification of his registration be 
denied. 21 U.S.C. 824(a)(3), id. Sec.  823(f).

Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well 
as 28 CFR 0.100(b), I order that DEA Certificate of Registration 
FV0660565 issued to Robert C. Vidaver, M.D., be, and it hereby is, 
revoked. Pursuant to the authority vested in me by 21 U.S.C. 823(f), as 
well as 28 CFR 0.100(b), I further order that any pending application 
of Robert C. Vidaver, M.D., to renew or modify this registration, as 
well as any other pending application by him for registration in the 
State of New Hampshire, be, and it hereby is, denied. This order is 
effective March 22, 2018.

    Dated: February 6, 2018.
Robert W. Patterson,
Acting Administrator.
[FR Doc. 2018-03303 Filed 2-16-18; 8:45 am]
 BILLING CODE 4410-09-P